We find that the negligence alleged by the plaintiffs that (1) there was no gate or railing at the entrance to the lookout gallery; (2) the lookout gallery had inadequate lighting; and (3) that the Government failed to warn Mr. Battista of an unsafe condition was proven at trial and constituted the proximate cause of the accident. Ordonez v. LIRR, 112 A.D.2d 923, 492 N.Y.S.2d 442, 443 (2d Dep't 1985); Wagshall v. Wagshall, 148 A.D.2d 445, 538 N.Y.S.2d 597, 598-99 (2d Dep't), appeal dismissed in part and denied in part, 74 N Y2d 781, 545 N.Y.S.2d 101, 543 N.E.2d 744 (1989); Ascher v. F. Garafolo Elec. Co., Inc., 113 A.D.2d 728, 493 N.Y.S.2d 196, 197-98 (2d Dep't 1985), aff'd, 67 N.Y.2d 637, 499 N.Y.S.2d 681, 490 N.E.2d 548 (1986). As noted, Mr. Battista testified that he was never notified of the continuation of the ladder shaft to the basement.
We conclude that on the record of this case, no genuine issues of fact concerning the malfunctioning light as the proximate cause of plaintiff's injuries were proffered in response to defendant's motion to dismiss. An examination of plaintiff's opposition motion papers reveals no evidentiary proof "in admissible form," other than "`"[m]ere conclusions, expressions of hope or unsubstantiated allegations or assertions,"'" that the alleged insufficient lighting in the parking lot may have contributed to the criminal incident leading to plaintiff's injuries ( Ascher v Garafolo Elec. Co., 113 A.D.2d 728, 731 [quoting Krupp v Aetna Life Cas. Co., 103 A.D.2d 252, 262 (citations omitted)], affd for reasons stated below 67 N.Y.2d 637). Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur in memorandum.
The resulting wreckage formed a dam that caused extensive flooding and an ice jam, disrupting transportation for 2 months. Plaintiffs, owners of grain stored on their ships located on the river, were unable to unload the grain and they sued defendants for the resulting damage (see also Ascher v. F. Garafolo Electric Co., 113 A.D.2d 728, 729-731, affd 67 N.Y.2d 637 [insufficient lighting of subway platform, carrying dangerous trap and nuisance for subway riders, not proximate cause of injury as a matter of law]). Liability Imposed and Enforced by the Judiciary for Lawful, HeavilyRegulated, Commercial Activity involving a Nondefective Product.
In response, the defendant presented only conclusory allegations to support his assertion that his assignee vacated the premises and to support his other affirmative defenses. Without any specific facts or any other evidence to support these allegations, summary judgment was properly granted in favor of the plaintiff ( see, Abacus Real Estate Fin. Co. v. P.A.R. Constr. Maintenance Corp., 115 A.D.2d 576; Ascher v. Garafolo Elec. Co., 113 A.D.2d 728, affd 67 N.Y.2d 637; Snelson v. SGM Catering, 47 A.D.2d 903). In his motion for reargument, the defendant stated that the court had improperly granted the plaintiff summary judgment because the plaintiff had assigned its rights to collect rent under the lease to Columbus Realty Investment Corp. (hereinafter Columbus Realty), and therefore the plaintiff was not the proper party to commence the action.
Evidence that the owner of the mall had notice of six prior criminal incidents at the mall, none of which occurred by the loading dock, does not establish that an attack upon plaintiff was reasonably foreseeable (see, Leyva v. Riverbay Corp., 206 A.D.2d 150; Surini v. Adamowicz, 200 A.D.2d 737, lv denied 83 N.Y.2d 755; Golombek v. Marine Midland Bank, 193 A.D.2d 1113). The fact that conduct is conceivable does not render it foreseeable (see, Ascher v. Garafolo Elec. Co., 113 A.D.2d 728, 732, affd 67 N.Y.2d 637; Cercone v. Norstar Bank [appeal No. 1], 199 A.D.2d 987, lv denied 83 N.Y.2d 756; Golombek v. Marine Midland Bank, supra).
When plaintiff could not open the stairwell door and immediately turned so as to flee to the next landing, the perpetrators were already standing in front of her and immediately struck her. It is clear then that the alleged absence of the doorknob or handle on the door leading to the third floor did not set into motion, or contribute to the cause of the assault that was already in the process of occurring. Plaintiff has failed to offer any evidentiary proof other than "`"[m]ere conclusions, expressions of hope or unsubstantiated allegations or assertions,"'" to support her contention that defendant's alleged inadequate maintenance of the stairwell door may have contributed to the cause of the criminal incident leading to plaintiff's injuries ( Ascher v. Garafolo Elec. Co., 113 A.D.2d 728, 731, affd 67 N.Y.2d 637, quoting Krupp v. Aetna Life Cas. Co., 103 A.D.2d 252, 262, quoting Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Since plaintiff has failed to show that the alleged negligence was a substantial cause of the events which produced the injuries ( Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315), I vote to reverse the IAS Court and dismiss the complaint.
In any event, this "premises defect" claim is no more than an argument that the passageway would have been a much safer place had there been no construction materials there. It is, in effect, the same disguised police protection argument which was rejected by this Court in Rivera v. New York City Tr. Auth. ( 184 A.D.2d 417; see, also, Farber v. New York City Tr. Auth., 143 A.D.2d 112, 113; Calero v. New York City Tr. Auth., 168 A.D.2d 659, lv denied 78 N.Y.2d 864) and, in any event, fails on the issue of proximate cause as being too speculative as a matter of law. (Ascher v Garafolo Elec. Co., 113 A.D.2d 728, affd 67 N.Y.2d 637; see also, Khodai v. New York City Tr. Auth., 176 A.D.2d 524.) Accordingly, I would reverse and grant the Authority's motion for summary judgment dismissing the complaint.
Thus, she makes no claim of a special relationship and its concomitant special duty (see, Crosland v New York City Tr. Auth., 68 N.Y.2d 165, 168-169; De Long v. County of Erie, 60 N.Y.2d 296, 304). As pointed out by defendant, however, numerous courts have declined to hold that lapses of proper maintenance, including inadequate lighting, involve a municipality's proprietary function and are, therefore, actionable in the absence of a special duty (see, e.g., Bardavid v. New York City Tr. Auth., 61 N.Y.2d 986; Khodai v. New York City Tr. Auth., 176 A.D.2d 524; Farber v. New York City Tr. Auth., supra; Ascher v. Garafolo Elec. Co., 113 A.D.2d 728, affd 67 N.Y.2d 637). Simply stated, the lack of illumination at plaintiff's exit was not, as relevant to her claim, an issue of proprietary maintenance, but one which involves passenger security and, therefore, invokes defendant's governmental function (Farber v New York City Tr. Auth., supra; Calero v. New York City Tr. Auth., 168 A.D.2d 659, lv denied 78 N.Y.2d 864). As such, a special duty is required and, none having been pleaded or established, defendant's motion to dismiss should have been granted.
Contrary to the plaintiffs' present contentions, this is not a case wherein the injury-producing act was "a normal or foreseeable consequence of the situation created by the defendant's negligence" (Derdiarian v Felix Contr. Corp., supra, at 315; see, e.g., Barker v Parnossa, Inc., 39 N.Y.2d 926), nor does it present a scenario where "the intervening, intentional act of another is itself the foreseeable harm that shapes the duty imposed" (Kush v City of Buffalo, supra, at 33). Rather, the record demonstrates that while Peninsula may have neglected its duty to maintain the shed, this alleged breach of duty bore no causal relationship to the infant plaintiff's injury and was in fact superseded by the independent, intervening act of one of the infant defendants (see, e.g., Boltax v Joy Day Camp, 67 N.Y.2d 617; Ascher v Garafolo Elec. Co., 113 A.D.2d 728, affd 67 N.Y.2d 637; Santiago v New York City Hous. Auth., 101 A.D.2d 735, affd 63 N.Y.2d 761). To impose a duty upon Peninsula with regard to the act of one boy in hurling a roofing shingle from Peninsula's shed at the infant plaintiff would impermissibly extend a landowner's duty far beyond any previous judicial determination. For example, in Barker v Parnossa, Inc. (supra), the plaintiffs' decedent fell from an abandoned, useless silo which clearly should have been safeguarded.